|
By using this Web Site and by placing orders through our Print Portal System you agree to abide by the following DEALER AGREEMENT Terms of Use. THIS DEALER AGREEMENT is made and entered into, by and between Tenenz Business Solutions, LLC, a Minnesota limited liability company, doing business as Thunderbird Business Solutions (the “Company”), and the “Dealer” who is using this web site and related systems.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.Appointment. Company hereby appoints Dealer as a non-exclusive dealer of its products as identified on Schedule A attached hereto (as such products and product line may be modified from time to time, the “Products”) with the right to purchase the Products from the Company for resale by the Dealer to end-user customers. Dealer shall maintain and operate its dealership at the location as stated in the Bill to area of the Company’s Portal System (“Location”). Dealer hereby accepts such appointment and agrees that the relationship between Dealer and Company shall be governed by the terms and conditions of this Agreement.
2.Products. The Company shall have the right to discontinue the manufacture or distribution of any of the Products from time to time and/or to change the specifications of the Products at any time without incurring any obligation to Dealer or customers of Dealer.
3.Primary Area of Responsibility. Dealer’s territory (“Primary Area”) for the marketing, sale and distribution of the Products shall be the trade area immediately surrounding the Location. During the term of this Agreement, Dealer will not knowingly directly or indirectly sell, distribute or deal the Products to any Person located outside Dealer’s Primary Area or, directly or indirectly through itself or others, within or outside the Primary Area.
4.Purchase of Products by Dealer. Company agrees to sell the Products to Dealer, and Dealer agrees to purchase the Products from Company, upon the terms and conditions set forth in this Agreement. Dealer’s primary ordering mechanism will be internet or email based. Dealer’s Product order is finalized and accepted when Company accepts Dealer’s order. All of the terms and conditions governing the Product order shall be the Company’s published terms and conditions in place from time to time. No return of any Products shall be made without the prior written authorization of Company.
5.Prices. Dealer shall purchase the Products from Company, f.o.b. Company’s facility in Minneapolis, Minnesota, at the Company’s prices prevailing on the date of Company’s acceptance of Dealer’s order. Company’s prices, as well as sales promotions and incentives and schedules of discounts and terms, applicable to Dealer are subject to change, provided that changes in Company’s prices shall occur upon at least 30 days advance notice of such changes, such notice given according to this Agreement or pursuant to general communication directed or available to all Dealers. In addition to such purchase price, Dealer shall be responsible for all taxes, fees or other governmental charges which now or hereafter may be applicable to the sale or transfer of the Products, for all costs applicable to preparing the Products for shipment and for all freight and other shipment costs.
6.Payment. Unless otherwise specified in writing by Company, Dealer shall pay the purchase price and applicable taxes and freight for the Products purchased from the Company hereunder via ACH funds transfer or such other payment method as may be approved in advance and in writing by Company and such payment shall be received by Company within seven (7) business days following Company’s acceptance of Dealer’s order. DEALER SHALL BE SOLELY RESPONSIBLE FOR THE PRICES AND OTHER TERMS AND CONDITIONS UPON WHICH IT RESELLS OR OTHERWISE DISPOSES OF THE PRODUCTS, AND DEALER AND COMPANY HEREBY ACKNOWLEDGE THAT COMPANY HAS NO CONTROL WHATSOEVER WITH RESPECT TO SUCH RESALE PRICES OR OTHER TERMS AND CONDITIONS OF RESALE.
7.Additional Obligations of Company.
a.Company will use its commercially reasonable efforts to fill Dealer’s orders in the ordinary course of its business as promptly as reasonably possible. Company shall not be deemed to be in breach hereof or liable to Dealer in any manner on account of any delay in delivery or other performance caused in whole or in part by, or otherwise materially related to, the occurrence of any contingency beyond Company’s control, including without limitation, fire, flood, riot, hostilities, lockouts, strikes or other labor disputes, freight embargoes or transportation delays, shortage of labor, inability to secure fuel, energy, materials, supplies or power at reasonable prices or from regular sources or on account of shortages thereof, delays or failures of any of Company’s suppliers to deliver, acts of God or of a public enemy, any existing or future laws, acts or regulations of the Federal or of any state or local government (including specifically but not exclusively any orders, rules or regulations issued by any official, court or agency of any such government) affecting the conduct of Company’s business with which Company, in its judgment and discretion, deems it advisable to comply as its legal duty, or because of any other commercial impracticability.
b.Company shall make the Products available for pick-up by a carrier designated by Company in good condition and packaged for domestic shipment in accordance with standard commercial practices. Company shall not be responsible for delays or damage during shipment, and any such carrier shall be solely the agent of Dealer. Bills of lading or express or other shipper’s receipt shall constitute conclusive evidence of the good condition and proper packaging of the Products at the time tendered to such carrier, and Dealer shall make no claim against Company with respect to damage to the Products which occurs from or after such tender.
c.Except for identified House Accounts, Company shall not knowingly sell directly to Dealer’s customers.
8.Additional Obligations of Dealer.
a.Dealer shall use its best efforts to promote the marketing, distribution and sale of the Products through a properly trained sales staff and to make reasonable efforts to insure that the Products are transported, handled, stored and delivered so as to maintain the Products free from damage. Dealer shall not knowingly sell Products directly to another Dealer’s customer(s) unless such customer approves the sale in writing.
b.Dealer shall obtain all licenses, permits or certificates which are required under applicable law to conduct its business and shall comply with all laws applicable to its business.
c.Dealer shall refrain from business practices, advertising and promotional programs which are unethical, deceptive, misleading, unlawful, abusive or harassing.
d.Dealer shall comply with all of Company’s programs, policies, procedures, bulletins, manuals, and instructions with respect to the marketing and sale of Products as the same are established and revised from time to time by Company.
e.Dealer shall not indicate or imply in any way that the Dealer is an “agent” or “representative” of the Company or that the Dealer is acting on the Company’s behalf.
f.Dealer shall meet such other reasonable standards of performance as may be established from time to time by the Company.
g.Dealer shall provide to Company its resale exemption certificate as to sales and use taxes, if applicable, in relation to Dealer’s purchase of Products, and such resale exemption certificate shall be provided annually to Company in January each year. If a resale exemption is not applicable as to any or all of Dealer’s purchases of Products from Company, then Dealer shall be obligated to pay all applicable sales or use taxes and shall cooperate with Company in the payment, remittance and reporting of such taxes.
h. Dealer shall not sell product or services of any kind from any current or former employee or any current or former supplier of Business Card Experts, Inc. Nor will Dealer disclose any proprietary information including but not limited to pricing, products, marketing programs or other information of any kind to any competitor of Company.
9.Independent Contractor. This Agreement does not constitute Dealer as an agent, employee, joint venturer, partner, franchisee or legal representative of Company for any purpose whatsoever. Dealer is not granted, and at no time shall imply or claim that it possesses, any right or authority to assume or create any obligation, responsibility or liability on behalf of or in the name of Company or to bind it in any manner whatsoever. Dealer shall have the sole right to control the manner in which it performs its responsibilities and duties under this Agreement, subject to no control by Company except as otherwise expressly provided in this Agreement and shall not be entitled to any assistance from Company with respect to the performance of such duties except as otherwise expressly provided in this Agreement. The Dealer shall conduct its entire business under this Agreement at its own cost and expense. Dealer is solely responsible for making, and represents and warrants that it has made, its own determination concerning the availability of a market for the Products and acknowledges that Company has made no claims, representations or statements to the effect that (i) there is a market for the Products; or (ii) Company will locate customers for the Dealer.
10.Term. The term of this Agreement shall commence on the Effective Date and be for a period of one (1) year from and after the Effective Date, subject to the renewal and termination provisions herein, in Sections 13 and 11 respectively. Any business relations between Company and Dealer after termination of this Agreement (whether due to the expiration of the term or due to a termination) shall not constitute a waiver of the termination of this Agreement or in any manner reinstate the contractual relationship which existed by virtue of this Agreement. All such post termination relations shall be governed by terms and conditions which are identical to the relevant provisions of this Agreement (unless the parties execute a new agreement superseding this Agreement), and may be terminated at any time, without or without cause, by a written notice of thirty (30) days given by either party.
11.Termination. This Agreement may be terminated at any time as follows:
a.By mutual agreement of the Company and Dealer.
b.By Dealer upon at least thirty (30) days advance written notice to Company.
c.By Company at the end of an annual term hereof, upon at least thirty (30) days advance written notice to Dealer.
d.By either Company or Dealer upon sixty (60) days (or the minimum amount of time required by state law) advance written notice to the other party based on any material breach of this Agreement by the party receiving the notice, provided that such breach is not cured within the sixty (60) days, or other appropriate, period.
e.By Company upon ten (10) days advance written notice to Dealer in the event any sums owed to Company by Dealer are not paid when due, provided that all such sums are not paid to Company within this ten (10) day period.
f.By Company upon Dealer’s sale, lease, or other transfer of assets which may adversely affect the ability of Dealer to operate its business pursuant to this Agreement.
g.By Company upon any change in control or ownership of Dealer, unless Company has consented in writing to such change.
h.By Company upon Dealer’s failure to place an order for Products with the Company within a period of four (4) consecutive months.
i.By Company upon Dealer’s failure to reasonably serve that Dealer’s customers.
j.Upon the occurrence of any of the following events, either Company or Dealer may terminate this Agreement immediately upon written notice to the other party:
(1)A party’s closing of its business or suspension or other revocation of any license, permit or authorization necessary to conduct business in accordance with this Agreement.
(2)A party’s failure to pay debts as they mature, or assignment for benefit of creditors, or becoming subject to any receivership, insolvency, or bankruptcy proceedings.
(3)A party’s falsification of any statements, records, reports, data or information submitted to the other party.
k. By Company with the death or incapacity of Dealer if Dealer is an individual, or the dissolution of a Dealer if that Dealer is a business entity.
l. It is expressly understood and agreed that the right of termination set forth in this Section is absolute, and that the parties have considered these possibilities in the making of expenditures by one or both of the parties hereto in preparation for and actual performance of this Agreement, and the possibility of loss and damage resulting from its termination. It is the express intent and agreement of the parties that neither shall be liable to the other for damages arising by reason of the termination of this Agreement, whether based upon loss of anticipated sales or prospective profits, expenditures, investments, leases, property improvements, or other matters related to the business of the parties.
12.Effect of Termination. Upon termination of this Agreement:
a.Company shall not have any obligation to accept any additional purchase orders from Dealer.
b.Company shall be relieved of any obligation to make any shipments of Products to Dealer, and may cancel any unshipped orders of Dealer for Products, as to any Product orders for which Company has not been paid in full at the time of termination.
c.All indebtedness of Dealer shall become immediately due and payable to Company.
d.Company may require cash on delivery or payment in full prior to shipment of any Products which may be shipped after termination or notice thereof.
e.Neither party shall be released from the payment of any sum then owing to the other party or from any liability which it may have to the other party arising out of this Agreement or the breach of this Agreement.
f.Dealer shall cease to operate as or represent itself as a Company Dealer of the Company and its Products.
13.Renewal. The term of this Agreement is for the period of time set forth in Section 10 hereof. Unless this Agreement is terminated pursuant to the provisions of Section 11 hereof, the term of this Agreement shall renew automatically for a period of one (1) year from and after the expiration of the then current term. Any reference to the “term” of this Agreement shall include and be a reference to any then current renewal term. It is expressly understood and agreed that the right or opportunity for renewal of the term of this Agreement is NOT absolute, and that the parties have considered these possibilities in the making of expenditures by one or both of the parties hereto in preparation for and actual performance of this Agreement, and the possibility of loss and damage resulting from its non-renewal. It is the express intent and agreement of the parties that neither shall be liable for the other for damages arising by reason of the non-renewal of this Agreement, whether based upon loss of anticipated sales or prospective profits, expenditures, investments, leases, property improvements, or other matters related to the business of the parties.
14.Company’s Remedies Cumulative. The remedies provided herein to Company shall be cumulative and in addition to all other remedies which it may exercise in equity or at law, and its exercise of any one or more of such remedies shall not be deemed to be an election to exercise only such remedy or remedies, or a waiver of its rights to exercise any other remedy or remedies at the same time or at any other time.
15.Proprietary Information. In the course of carrying out this Agreement, it may be necessary for Company to disclose to Dealer certain sales, technical, pricing, quotation, customer and other information and data, which is proprietary in nature. Since Company wishes to protect such proprietary information, Dealer hereby agrees that it will not disclose to any person or persons any of Company’s proprietary information, nor use such proprietary information for any purpose, other than carrying out the intent of this Agreement in the sale of Company’s Products, without the prior written consent of Company. Dealer also agrees to hold in confidence all confidential disclosures made to it, including trade secrets heretofore and hereafter disclosed, and to take all necessary steps to insure the protection of confidential information. Dealer further agrees that proprietary information will not be copied without the prior written permission of Company and, at the termination of this or any subsequent agreements, Dealer will return all proprietary information to Company. The proprietary information obligation under this Agreement shall survive for a period of thirty-six (36) calendar months after the termination hereof.
16.Indemnification. The Company shall not be liable for any act or failure to act by the Dealer, its agents or employees. Dealer agrees to indemnify and hold Company harmless from and against any and all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including, without limitation, reasonable attorneys’ fees imposed upon or incurred by or asserted against Company) which arise as a result of (i) the acts, omissions, representations and warranties of Dealer, its employees or agents, whether or not within the scope of this Agreement, (ii) the failure of Dealer to perform any acts required under any agreements with third parties or which otherwise arise out of or which are incidental to the conduct by Dealer of its business under this Agreement, (iii) the breach of this Agreement by Dealer, (iv) the breach of any warranty given by or on behalf of the Dealer with respect to the Products which has not been expressly authorized by the Company, and (v) the Dealer’s failure to timely pay Company in full for any Products ordered by Dealer hereunder. The Dealer’s indemnification obligations hereunder shall survive the termination of this Agreement.
17.Warranties. Except for warranties or representations contained in promotional and sales material supplied by Company to Dealer or contained on the Company’s packaging for the Products, Company hereby makes no warranties or representations with respect to any Products sold (including resale by Dealer) under this Agreement whether written or oral, expressed or implied. THIS EXCLUSION OF IMPLIED WARRANTIES INCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Company shall have no liability of any kind with respect to sales and resale for (i) breach of any warranty disclaimed hereby, (ii) losses or damages due to any delays in fulfilling orders accepted from Dealer, delays in meeting delivery dates or delays in shipping, or (iii) any losses or damages resulting from cause beyond the immediate and direct control of Company. In no event shall Company be liable for any incidental or consequential damages. Dealer agrees that it shall be solely and absolutely liable for any warranties given by it to its customers or others regarding the Products, beyond those warranties and representations made by Company.
18.Trademarks, Trade Names, Etc. Dealer shall not acquire by reason of this Dealership any rights in or under any trademark or trade names, registered or unregistered, which are owned by Company and agrees not to contest the validity of any trademarks used or owned by Company. Dealer shall not have the right to use the trade names, trademarks or other insignia of Company except with the written consent of Company. Dealer agrees not to register or maintain the registration of any trademarks or trade names or other insignia which infringe upon, are in conflict with, or are confusingly similar to any trademark, trade name or insignia of Company. If Dealer has acquired or at any time by any means acquires any rights in or under such trademark or trade name, it will promptly, upon request, assign all such rights to Company, this provision to survive the termination of this Dealership. Dealer agrees to notify Company of any use of Company trademarks by third parties and to assist Company in prosecuting such third parties for trademark infringement.
19.Entire Agreement. This Agreement contains the entire agreement of the parties hereto and supersedes all prior or contemporaneous agreements and understandings, oral or written, between the parties hereto as of the date hereof with respect to the subject matter hereof.
20.Amendment; Waiver. Except as otherwise provided herein, no amendment, modification or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by all of the parties hereto. The waiver or failure of either party to enforce the terms of this Agreement in one instance shall not constitute a waiver of that party’s rights under this Agreement with respect to other violations.
21.Governing Law. This Agreement shall be deemed to be a contract made under and shall be construed, interpreted, governed by and enforced in accordance with the laws of the State of Minnesota, excluding that body of law known as choice of laws. Any claim, action or other dispute between the parties as to the terms of this Agreement, or as to the performance or nonperformance of either party under this Agreement, or as to any other matter arising out of the parties’ relationship, shall be resolved by the State and Federal Courts of the State of Minnesota. Should any provisions of this Agreement be inconsistent with any applicable laws relating to Dealer, Dealer agrees to waive any and all rights and remedies it may have under such law to the extent it may waive such rights and remedies.
22.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement.
23.Severability. The provisions of this Agreement shall be deemed severable; and if any portion hereof shall be held invalid, illegal or unenforceable for any reason, the remainder shall not thereby be invalidated but shall remain in full force and effect.
24.Assignment. This Agreement is personal to Dealer and Dealer may not sell, assign, delegate, convey, or otherwise transfer in any manner whatsoever this Agreement or Dealer’s rights or obligations under this Agreement to any person or other entity without the prior written consent of Company.
25.Time of Essence. Time shall be of the essence of this Agreement and of each and every part hereof.
26.Terms. All terms and words used in this Agreement, regardless of the number and gender in which they are used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine or feminine, or neuter, as the context or sense of this Agreement or any paragraph or clause herein may require, the same as if such words had been fully and properly written in the appropriate number and gender.
27.Title and Headings. The titles and headings used herein are for convenience only and do not constitute any part of this Agreement.
28.Notices. All notices and other communications required by this Agreement shall be in writing. Notices and other communications shall be delivered by hand, sent by certified mail, return receipt requested, or sent by overnight courier with receipts. Notices and communications sent by certified mail, return receipt requested and overnight courier shall be effective on the date of sending. Notices and other communications shall be given, or sent to the parties, at the following addresses:
If to Dealer: Contact name and address noted in Company’s Portal System
If to Company: Tenenz Business Solutions, LLC
1100 - 80th Street East
Bloomington, MN 55420
Attn: President
Any party hereto may designate any other address for notices given to it hereunder by written notice to the other party given in the manner provided above, at least ten (10) days prior to the effective date of such change.
Use of this site and placement of orders through the Company and the Company’s systems constitutes acceptance of these terms as well as electronic acceptance of these terms and conditions.
Schedule A
Thunderbird Business Solutions Products
Business Cards
Folding Business Cards
Trading Cards
Postcards
Rack Cards
Sales Flyers
Brochures
Labels
Custom Notepads
Letterhead
Envelopes
Greeting Cards
The above products come in varied sizes and quantities. Additional products may be added from time to time.
1060624v3
|